People v. American Contractors
| Decision Date | 16 August 2001 |
| Docket Number | No. B144246.,No. B137602.,B137602.,B144246. |
| Citation | 110 Cal.Rptr.2d 799,91 Cal.App.4th 799 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. AMERICAN CONTRACTORS INDEMNITY COMPANY, Defendant and Appellant. County of Los Angeles, Plaintiff and Appellant, v. American Contractors Indemnity Company, Defendant and Respondent. |
Lloyd W. Pellman, County Counsel, Louis W. Aguilar, Assistant County Counsel, H. Anthony Nicklin, Sr., Principal Deputy County Counsel; Greines, Martin, Stein & Richland, Timothy T. Coates and Carolyn Oill, Beverly Hills, for Plaintiff and Appellant and for Plaintiff and Respondent.
Nunez & Bernstein and E. Alan Nunez, Fresno, for Defendant and Appellant and for Defendant and Respondent.
This case involves two consolidated appeals. In the first (B137602), American Contractors Indemnity Company (American Contractors) appealed from orders denying its motions to vacate forfeiture of a bond. In the second (B144246), the County of Los Angeles (County) appealed from an order setting aside summary judgment and exonerating the same bond. Both appeals present the issue of whether the failure to give notice of forfeiture in precise accordance with Penal Code section 1305, subdivision (b)1 exonerates a bond. The second appeal also raises the issue of how to calculate the last day on which motion for summary judgment on a bond may be granted. We agree with American Contractors that it was not given proper notice of forfeiture, which, under the statute, must result in release of its obligation on the bond.
On February 16, 1999, Hyun G. Kang was found guilty of multiple counts of assault, robbery, and rape. On February 26, 1999, Kang was released pursuant to a $2.5 million bond posted by OK Bail Bonds acting as an agent for American Contractors. Kang was ordered to reappear on April 6, 1999, at 8:00 a.m. for a sentencing hearing.
Shortly after his release, the district attorney's office became concerned that Kang had fled the United States. On March 10, 1999, nearly a month before the scheduled sentencing hearing, the district attorney's office brought an ex parte motion for revocation of bail. The trial court revoked bail, issued a bench warrant for Kang's arrest and, according to the parties, ordered bail forfeited as of that date. On March 17, 1999, the clerk of the court mailed notice of order forfeiting bail for failure to appear on March 10, 1999, to OK Bail Bonds and American Contractors. The notice stated: "Your contractual obligation to pay each bond will become absolute on the 181st day following the date of the mailing of notice of the forfeiture unless the Court orders the forfeiture set aside and the bond reinstated or exonerated."
On May 25, 1999, American Contractors filed a motion to vacate the forfeiture and exonerate bail, contending that the court lacked jurisdiction to declare a forfeiture unless the defendant failed to appear at a hearing where his presence was lawfully required. According to American Contractors, the proper procedure would have been to revoke bail on March 10, but to postpone forfeiture until April 6, when Kang was scheduled to appear. The moving papers further stated that the court lost jurisdiction over the bond, having failed to declare forfeiture on April 6.
At the hearing on June 10, 1999, the court presented counsel with an excerpt from the reporter's transcript for the April 6 sentencing hearing in which the court having been informed that Kang was not present, stated: "No answer by the defendant Hyun Kang, bail posted is ordered forfeited, and bench warrant is issued."2 Counsel protested that American Contractors had no notice of any such forfeiture. The court replied: The court granted the motion to vacate the March 10 forfeiture, ruling that the forfeiture was indeed erroneous because the defendant "was not ordered to be present on that date and did not receive notice of the People's motion to forfeit bail." The court went on to conclude, however, that it had "retain[ed] jurisdiction to forfeit bail on April 6, 1999 when the defendant was ordered to appear." The court then ordered the bail department "to prepare any and all necessary forfeiture notices to the surety reflecting a forfeiture date of April 6, 1999."3 The notice was subsequently mailed by the clerk to OK Bail Bonds and American Contractors on July 1.
On July 15, 1999, American Contractors filed a motion to reconsider the June 10 order on the ground that the docket failed to reflect that the court ordered bail forfeited on April 6, that a forfeiture number was assigned, or that a notice of forfeiture was mailed to the bail agent and surety. The declaration in support of the motion indicated that Kang had been detained by the bail agent and identified by local law enforcement personnel in Seoul, South Korea on April 8. A declaration from an American Contractors vice-president indicated that American Contractors had conducted a search of the docket in order to determine if bail had been forfeited on April 6, and found nothing.
At a hearing on July 29, the motion was denied,4 the court The court further ruled that "[t]he 180 days, time period to produce the defendant, runs from July 1, 1999." At the hearing, the court expressed the view that this was a case of either "premature notice" referring to the March notice of forfeiture or actual notice based on the discussion at the hearing on June 30. While not strictly in accord with the law as written, the court believed this notice sufficed to meet the statutory requirements, and that American Contractors had not been prejudiced by the failure to comply with the statute.
American Contractors filed its notice of appeal from the court's June 10 and July 29 orders on December 6, 1999.
On March 17, 2000, an order granting summary judgment on the bond was entered pursuant to section 1306.5 American Contractors filed a motion to set aside the summary judgment. In its moving papers, American Contractors again argued that the court lost jurisdiction due to failure to mail timely notice of the April 6, 1999, forfeiture. It further argued that the summary judgment order had been entered long past the jurisdictional deadline for entry contained in section 1306, subdivision (c).6 The County contended in opposition (1) that notice was received through the "premature" March notice of the March 17 forfeiture and through the bail agent's knowledge that Kang had fled to South Korea, and (2) that the summary judgment was timely because it was entered within 275 days of July 1, 1999, the day written notice of the April 6 forfeiture was mailed.
The trial court granted the motion to set aside summary judgment and exonerated the bond, stating in its order: 7
This ruling was appealed by the County on August 18, 2000. We granted a motion to consolidate the two appeals on February 28, 2001.
The first issue is whether the failure to comply with the statutory notice provisions must result in exoneration of the bond. Section 1305, subdivision (b) states in relevant part: "If the amount of the bond . . . exceeds four hundred dollars ($400), the clerk of the court shall, within 30 days of the forfeiture, mail notice of the forfeiture to the surety. . . ." Where the surety is an authorized corporate surety, "and if the bond plainly displays the mailing address of the corporate surety and the bail agent, then notice of the forfeiture shall be mailed to the surety at that address and to the bail agent, and mailing alone to the surety or the bail agent shall not constitute compliance with this section." (Id., 2d par.)
The statute goes on to provide that (§ 1305, subd. (b).)
The following general rule must be applied whenever courts are called upon to construe the laws governing bail bonds: " (County of Los Angeles v. Surety Ins. Co. (1984) 162 Cal.App.3d 58, 62, 208 Cal.Rptr. 263.) Sections 1305 and 1306 are said to be "jurisdictional prescriptions." (County of Los Angeles v. Ranger Ins. Co. (1999) 70 Cal.App.4th 10, 16, 82...
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